UK: Scotland: can a director represent a company in court proceedings?

In Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd. [2009] CSOH 50, Lord Hodge had before him an application by the Secretary of State for the winding-up of a company on the grounds that it was in the public interest to do so within Section 124A of the Insolvency Act (1986). An interesting question arose: was a director of the company subject to the winding-up application entitled to represent the company in court proceedings?

The director advanced several arguments to support his position that he was entitled to represent the company in the proceedings, including the contention that under Article 6 of the European Convention on Human Rights the company had an inalienable right to be represented in court by one of its directors. With regard to this argument, Lord Hodge stated (paras. [9] and [10]):

Article 6 of the European Convention on Human Rights gives everyone a right to a fair trial. That right includes, in most circumstances, the right to attend a court hearing and participate effectively in the proceedings. Companies and other non-natural persons can be victims in terms of the Convention. But that does not necessarily mean that in relation to representation in court a company should be treated in precisely the same way as a party litigant. A company as a legal person is not the same as a natural person. Where a person chooses to obtain the benefits of limited liability by trading through the medium of a registered company, he has also to accept the disadvantages to which separate legal personality gives rise. Thus as a general rule I see no incompatibility between Article 6 and the requirement that a company be represented in court not by a director but by a suitably qualified legal representative who has responsibilities to the court and who is subject to professional discipline.

I consider, nonetheless, that exceptional circumstances may arise in which the court has to take steps to allow a company or corporation to be represented in court in order to ensure a fair hearing under Article 6. The Rules of Court do not provide for such a circumstance but the court has an inherent power to regulate its own procedures which it can use in this context. It appears to me that there needs to be careful consideration of the circumstances in which the court may authorise a person who is not a lawyer with rights of audience to represent a company or corporation. Parties have not addressed me on this issue. It is likely to require the court to hear well thought out submissions from interested parties. I have therefore decided to report this issue to the Inner House for its opinion.